Code as speech: A discussion of Bernstein v. USDOJ, Karn v. USDOS, and Junger v. Daley in light of the U.S. Supreme Court's recent shift to Federalism

Abstract

The purpose of this paper is to address the question of whether computer source code is speech protected by the First Amendment to the United States Constitution or whether it is merely functional, a "machine", designed to fulfill a set task and therefore bereft of protection. The answer to this question is a complex one. Unlike all other forms of "speech" computer source code holds a unique place in the law: it can be copyrighted, like a book and it can be patented like a machine or process. Case law, intellectual property law and encryption export regulations all reflect this contradictory dichotomy. [PUBLICATION ABSTRACT]